Washtenaw County public defender supports commission findings on indigent defense

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Washtenaw County Legal News

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Washtenaw County Public Defender Lloyd Powell says many factors can lead to the conviction of an innocent person. Photo by Jo Mathis

By Tom Gantert and Jo Mathis

Legal News

Washtenaw County Public Defender Lloyd Powell said he agrees fully with the "long overdue findings" of the Michigan Advisory Commission on Indigent Defense's report that found the state wasn't meeting minimum standards for indigent defense as set forth by the American Bar Association.

Powell said it has been his office's experience over the years that many people charged with crimes have been disadvantaged by such things as poverty, dysfunctional families, child abuse, addictions, illiteracy, mental challenges, and a family history of discrimination going back generations.

"There has to be some check and balance in the best interests of all of us," Powell said.

The Michigan Advisory Commission on Indigent Defense released its report in June. It noted that in 2008, the National Legal Aide & Defense Association found Michigan ranked 44th in the nation on per-capita spending on indigent defense.

The state constitution guarantees people accused of crimes a right to "assistance of counsel." The obligation to pay for public defenders is the state's duty, the commission stated. However, it is the counties that end up paying the bill, it said.

The commission found that each county's system is dependent on its own interpretation of what is adequate. There are no state-wide standards. The commission said that the American Bar Association's 10 principles of minimum standards are not met in Michigan. Some of the reasons for failing to meet the ABA's standards included not controlling for attorney workload and not matching an attorney's training and experience with the nature and complexity of a case.

The commission made recommendations for improvements that are fiscally responsible and cost-effective even in this tough economic climate, Powell said.

He said they also try to ensure that indigent defense is free from undue political interference and conflicts of interest, that the right to counsel is delivered by effective counsel at each critical stage of the proceedings in a manner that is consistent throughout the state, and that government-funded criminal defense attorneys are sufficiently trained and supervised, appropriately qualified, and adequately compensated.

Powell said improvements are necessary because although our criminal justice system is one of the best in the world, it nevertheless has inescapable imperfections simply because human beings are imperfect.

A miscarriage of justice, he noted, can be caused by corrupt or inaccurate scientific evidence, the abuse of authority by officials who are in positions of power; human error; false testimony, confessions, memories, and perceptions; conscious or subconscious biasness and exacerbating conditions, and the underfunding of defense.

That's how innocent persons can be charged and convicted, Powell said.

"This results in the double tragedy of an innocent person being undeservedly punished while the guilty completely escape penalty and continue to abuse, harm and endanger our community," he said.

The Washtenaw County Board of Commissioners created an Office of Public Defender in 1971.

Public defenders in Washtenaw County earn as much as the prosecutors.

According to the Michigan Bar's 2010 survey, the average salary of a county-funded public defender was $80,700. However, private practitioners whose primary field of law was public defense had an average salary of $34,269.

Washtenaw County District Court Judge Chris Easthope said his county's public defenders are "great attorneys."

Washtenaw County's compensation is better than many counties, he said.

"If you can't establish a public defender's office in every county, you have to set high standards and make sure there is continuing education for those attorney and have a fee structure that makes it worth their time," Easthope said.

Jackson County doesn't have a public defender's office. In Jackson, public defenders have to be approved by the chief judge. They are hired on a contractual basis that is renewed every year. The judge makes a decision whether an attorney is qualified to handle the more extensive criminal cases, such as capital crimes.

Jackson attorney Jerry Engle has done work as a public defender since 1976. He estimates his law firm does about 160 cases a year as public defenders.

He says if a public defender case goes to trial, it's a financial drain.

"When you try these cases, you lose money," said Engle. "There is no question about it. You lose money."

Engle said attorneys in Jackson have the ability to do other type of work as well as take on a case as public defender.

He says he takes on public defender cases so he can stay up on the criminal laws. But he says if a public defender case goes to trial, it can be a burden financially to the lawyer.

"It's very easy to get 50 to 60 to 70 hours in a case. If it winds up in a trial, you can get substantially more than that," he said.

Under terms of the public defender contract, Engle said he has to have an office in Jackson County, which means he has to have a secretary among other bills to pay.

"And I'm bringing in $20 an hour (as a public defender)," he said. "I might be able to pay those bills but I'm not being able to pay myself."